OPINION

(First) Iain Holwill and (Second) Ann Holwill (Appellants)
v
The Keeper of the Registers of Scotland (Respondent)

Introduction

[1] This case commenced as an appeal under section 25 of the Land Registration (Scotland) Act 1979 (“the 1979 Act”), and after much process now involves a claim for compensation under section 12 of that Act. The appellants are former owners of the subjects known as Craigbeg House, Dechmont, Broxburn, formerly known as Craigneuk. It has a boundary with subjects known as North Lodge, Craigbinning, Dechmont. The claim arises out of the Keeper’s actions to register the North Lodge subjects under Title WLN 36946 in 2010. The appellants’ position is that land pertaining to Craigbeg House under sasine titles was included in the North Lodge title at the time of registration, thus rendering the land register inaccurate.

Procedure

[2] The procedural history is narrated in our previous decision dated 12 December 2017 which followed a debate. In our decision we reserved all questions as to the first appellant’s title and interest to sue in the light of his sequestration on 4 March 2009. We dismissed part of the claim relating to a payment made by his trustee in sequestration to a life insurance company, and struck out certain other words in the claim which we held to be irrelevant. We allowed the remainder of the claim to proceed.

[3] Thereafter the Keeper provided a detailed note of argument for a further debate, to which the appellants provided a written response. A further debate was held on 9 October 2018 preceded by a limited hearing on evidence. The debate concerned the issue of the validity, for land registration purposes, of a document signed by the appellants in 2000 namely a minute of agreement and mutual disposition (the “MAMD”). This document had been used in the registration process for North Lodge. The purpose of the evidential part of the hearing was to seek to ascertain the correct version of the document, since the productions before us included both a “clean” version and a “marked” version. In case management correspondence it appeared that parties did not have an agreed position on the matter, so we required evidence. Thereafter we held the debate at the instance of the Keeper as to the validity of the MAMD, in which the Keeper argued that the document was valid and the appellants argued that it was invalid.

[4] At the hearing the appellants were unrepresented, with only Mr Holwill appearing in person. The Keeper was represented by Mr Paul Reid, Advocate. The Keeper called as a witness Mr Thomas Murdoch, a senior registration adviser at the Registers of Scotland.

[5] Prior to the current hearing the Tribunal had received a written motion, under rule 27(4) of the Lands Tribunal for Scotland Rules 2003, by the applicants dated 21 September 2018 seeking “recall” of the Tribunal’s order dated 12 December 2017. This order had followed the previous debate and gave effect to our decision described above. The motion was accompanied by various documents including some historical correspondence. We refused the motion as incompetent on 27th September 2018 and a letter from the Tribunal’s clerk was sent to Mr Holwill enclosing the relevant order and stating the reason for the refusal. Mr Holwill sent further letters including those dated 2nd, 11th and 15th October, i.e. before and after the current debate, which appeared to raise points about the matters decided in the previous debate in the context of the submitted documents. The Tribunal has nothing to add in terms of its decision of 12th December 2017 and order of 27th September 2018.

[6] The Tribunal received a further unsolicited letter from Mr Holwill dated 12 October 2018. The letter runs for 3 pages and purports to address matters emerging at the debate “as provided for in the Tribunal’s guidance note.” There is no Tribunal guidance note which allows further submissions to be made without some formality of procedure, and there had been no request by the Tribunal for further submissions pending our consideration of the points made at debate. While we have read the letter and do not think it adds anything significant to what has already been submitted, we are not prepared to admit it to the proceedings.

Legislation

Prior to its repeal the Land Registration (Scotland) Act 1979 (“the 1979 Act”) provided as follows:-

4.— Applications for registration.

(1) … an application for registration shall be accepted by the Keeper if it is accompanied by such documents and other evidence as he may require.

(2) An application for registration shall not be accepted by the Keeper if—

(a) it relates to land which is not sufficiently described to enable him to identify it by reference to the Ordnance Map; …

Cases

Earl of Fife v Duff (1863) 4 Macq 469
Burnett’s Trustee v Granger 2004 SC (HL) 19
Low & Bonar PLC and other v Mercer Limited [2010] CSOH 47

Textbooks

Gretton and Reid, Conveyancing, (5th ed., paras 11-02 to 11-16, 11-21 to 11-24, 11-29, 25-08 and 25-09)

Reid, The Law of Property in Scotland, (para 645)

Background facts and circumstances

[7] The following background narrative did not appear to be in dispute and is taken from the pleadings and correspondence produced in this case. It is also based upon the “clean” version of the MAMD which we shall discuss later.

[8] There had been an issue between the appellants and the owners of North Lodge as to the boundary between the two subjects. In 2000 the owners of North Lodge were a Mr and Mrs Denis Clair. The appellants, the Clairs and the Clydesdale Bank signed a MAMD in 2000 and 2001 which sought to set out the boundary between the respective subjects by means of a detailed plan. The deed also was a form of excambion in that parties respectively conveyed to each other any land falling within their respective titles as fell on one side or other of the agreed boundary line.

[9] In particular recital (TWO) of the MAMD stated that the parties wished to determine the line of the common boundary separating the first subjects and the second subjects. It provided that Mr and Mrs Clair were “the first party” and Mr and Mrs Holwill were “the second party”. The Clydesdale Bank were “consentors” whose involvement is not necessary to detail here. “The first subjects” were defined as meaning:-

“ALL and WHOLE that dwellinghouse known as The Lodge (otherwise North Lodge), Craigbinning, Uphall in the Parish of Ecclesmachan and County of West Lothian with the solum thereof and ground attached being the subjects more particularly described in and disponed by …” (disposition by Cradock and Another ifo Waugh and Another recorded GRS (West Lothian) 18 May 1943) (“the 1943 disposition”)

[10] The second subjects were described as:-

“ALL and WHOLE those subjects known as Craigbeg (formerly Craigneuk), Craigbinning, Uphall in the county of West Lothian being the subjects more particularly described and disponed by (Primo) … (disposition by Cradock and Another ifo Walker recorded GRS (West Lothian) 11 April 1940), and (Secundo) (disposition by Cradock ifo More recorded GRS 23 June 1949) under exception of subjects described in a (disposition granted by Mrs Anne Smith or Ramsay ifo Judith Richardson or Milne recorded GRS 12 December 1979) ”

The description then refers to the Craigbeg subjects as being delineated and outlined in red on a plan annexed to a disposition by Mrs Anne Smith or Ramsay ifo Alexander Ross and Another recorded 17 July 1980, under declaration that the subjects in the 1980 disposition were incorrectly described by reference to the plan annexed to the 1980 disposition and were correctly described by a disposition by Mrs Smith or Ramsay ifo the appellants recorded 19 May 1995. The 1995 disposition uses a description of a larger area subject to various exceptions including an exception of the subjects conveyed by the 1943 disposition. It is not necessary to detail the other excepted areas. Suffice to say that the 1943 disposition was a split-off disposition of the first subjects from a larger area.

[11] The MAMD proceeds to agree in clause (ONE) that the common boundary between the first subjects and the second subjects lies along a particular face of a fence. In simple terms the red line marked on the plan from “O” to “P” marks the south east boundary of North Lodge relative to Craigbeg, and “P” to “Z” marks the south west boundary, running as it does between various points “Q” “R” “S” “U” “V” “W” and “X.”

[12] Clause (TWO) provides:-

“The first party hereby dispones to and in favour of the second party equally between them and to the survivor of them and to the executors and assignees whomsoever of the survivor heritably and irredeemably ALL and WHOLE (FIRST) ALL and WHOLE any area of ground presently in the ownership of the first party and falling within and forming a part and portion of the first subjects lying to the south east of the red line running between the points marked ‘O’ and ‘P’ on the plan and (Second) ALL and WHOLE any area of ground presently in the ownership of the first party and falling within and forming a part and portion of the first subjects lying to the south west, then to the north west, again to the south west, then to the south east and again to the south west of the red line running between the points marked ‘P’ and ‘Z’ on the plan; TOGETHER WITH the first party’s whole right, title and interest present and future therein and thereto”.

[13] Clause (THREE) provides:-

“The second party hereby dispones to and in favour of the first party equally between them and to the survivor of them and to the executors and assignees whomsoever of the survivor heritably and irredeemably ALL and WHOLE (FIRST) ALL and WHOLE any area of ground presently in the ownership of the second party and falling within and forming a part and portion of the second subjects lying to the north west of the red line running between the points marked ‘O’ and ‘P’ on the plan and (SECOND) ALL and WHOLE any area of ground presently in the ownership of the second party and falling within and forming a part and portion of the second subjects lying to the north east of the red line running between the points marked ‘P’ and ‘Z’ on the plan; TOGETHER WITH the second party’s whole right, title and interest present and future therein and thereto …”

[14] The MAMD goes on to provide for certain burdens. Entry is given “as at the last date hereof”. Parties granted simple warrandice. Parties consented to registration for preservation only. The parties executed the deed. There is a testing clause. The plan is also subscribed. The plan has a red line showing the agreed boundaries as described above.

[15] We understood that at some point Mr and Mrs Clair proceeded to build two buildings near to their boundary. They then sold North Lodge, including the two buildings, in about 2006. The purchasers were a Mr and Mrs Glendinning who duly sought to register title to the North Lodge. The Keeper identified problems in linking the common boundary specified in the underlying sasine title, namely the above-mentioned 1943 disposition of North Lodge, with the ordnance survey map. In terms of a letter by the Keeper to Messrs Davidsons acting for Mr and Mrs Clair dated 30 November 2006, the Keeper stated:-

“… It (the MAMD) cannot be registered in the Land Register since the Agreement part would appear to be a personal agreement between Mr and Mrs Clair and Mr and Mrs Holwill and does not bind successors and the disposition part would not be acceptable for registration as the property is not identifiable.”

The letter however indicated that the Keeper would accept an agreement under section 19 of the 1979 Act, but would require to be completed by the Glendinnings and Mr and Mrs Holwill.

[16] The Keeper had various correspondence with Mr Holwill. In a letter dated 19 September 2006 it was indicated that a land certificate for North Lodge would not be issued without some form of remedial action or court order. On 1 May 2007, Messrs Peterkin & Kidd for the Glendinnings contacted Mr and Mrs Holwill seeking to have the matter resolved by a section 19 agreement. There was further correspondence between the Keeper and Mr and Mrs Holwill at around this time, including that the Keeper would look favourably upon a section 19 agreement. By letter dated 9 May 2007 the Keeper wrote to Mr Holwill indicating that “The Keeper has already rejected a contract of excambion due to the difficulties in establishing the legal title of the 1943 Disposition”. In another letter to Mrs Holwill of 20 August 2007, the Keeper indicated that the Lands Tribunal may wish to consider any legal implications of the MAMD.

[17] No section 19 agreement was forthcoming. Subsequently in 2010 the Keeper essentially changed her mind. As appears from a letter dated 12 February 2010 from the Keeper to agents for Mr and Mrs Glendinning, the Keeper met a delegation on behalf of the Glendinnings. The Keeper now took the position that the MAMD could be referred to as a valid unrecorded link in title. The Keeper asked for a new disposition by Mr and Mrs Clair in favour of Mr and Mrs Glendinning without a reference to a notice of title (which we infer had previously been discussed or attempted) and instead to refer to the MAMD. Such a disposition dated 22 November 2009 was duly granted by the Clairs, which made reference to the subjects described in and disponed both by the 1943 disposition and the MAMD. The disposition included a signed plan showing identical or very similar south east and south west boundaries for North Lodge as shown in the MAMD plan. The MAMD was registered in the Books of Council and Session on 8 March 2010. The Keeper duly registered the title under WLN 36946 for North Lodge.

[18] It would appear that the appellants were not told of the registration process carried out in 2010. The matter of the registration was discussed in a letter to Mr Holwill from the Keeper dated 27 August 2012. By email dated 1 October 2014 to Mr Holwill an apology was given on behalf of the Keeper for the change in approach not having been directly communicated. An apology has been given by the Keeper to both appellants in the process before us.

[19] Finally, we have noted that the first appellant, Mr Holwill, was sequestrated on 4 March 2009. There is no suggestion that his trustee sought to enter a competition of title against Mr and Mrs Glendinning regarding the disputed parts of the North lodge title as were purportedly conveyed by Mr and Mrs Holwill to the Clairs via the MAMD. The trustee in sequestration and the second appellant, at the hand of the Sheriff Clerk following an action for division and sale, sold and disponed Craigbeg House in January 2013. The subjects registered were coterminous with the now registered North Lodge subjects. In other words the disposition by the trustee appears to have proceeded on the basis of the North Lodge boundary as settled by the MAMD in 2010.

The correct MAMD

[20] The MAMD which was registered in the Books of Council and Session was produced to us. It is a “clean” document. Another version of the MAMD has been produced by the appellants which shows certain handwritten markings on the document. At the December 2017 debate we had been uncertain as to which version of the MAMD was “correct” and had in fact been executed by the parties. The evidence by Mr Murdoch now establishes that the version which was registered in the Books of Council and Session on 8 March 2010 is the “clean” version. At some point a copy or extract found its way to the land register in support of the application for first registration of the North Lodge subjects. At that point it would appear that a member of the Keeper’s staff, known as a settler, made the annotations to the document during the registration process. A copy of the annotated version appears to have been provided to the appellants on request, who were seeking background information from the Keeper as to details of the registration process. This may have caused some confusion. We are satisfied, however, that the version which was executed by the appellants and Mr and Mrs Clair, and thence was provided in support of the application for registration on behalf of Mr and Mrs Glendinning, was the clean version.

Mapping dispute

[21] The appellants have produced a “Plan A” with an explanation “Note B”. This shows the North Lodge subjects with an area marked green representing the appellants’ interpretation of the area conveyed by the 1943 disposition. The plan also shows land coloured orange which is said not to have been comprised within the 1943 title. The orange area was however included in the North Lodge title registration which, it is maintained, erroneously carried away land from the appellants’ Craigbeg title. The appellants by adjustments dated 24 September 2015 indicate that the land transferred to the Glendinnings comprised the site of two residential buildings valued at £200,000. This value is what we understand to be the basis for the claim for compensation. In terms of a plan annexed to a report by a Mr Adamson MRICS dated 28 July 2017, it would appear these buildings are located on the land which it is contended ought not to have been transferred to the Glendinnings, namely the orange area of “Plan A.” We infer that these were the buildings constructed by Mr and Mrs Clair.

[22] The Keeper has produced an affidavit by a Stuart Payne, a senior plans adviser to the Registers of Scotland. This has sought to interpret the underlying sasine titles for both properties. It includes a “Print B” which shows his interpretation of the 1943 disposition for the North Lodge title to comprise areas tinted yellow and brown. This shows a substantially larger area than that shown in green by the appellants “plan A”. Print B also shows that the MAMD would transfer the brown areas from the North Lodge sasine title to the Craigbeg sasine title; and would transfer certain blue areas from the Craigbeg title to the North Lodge title. The appellants do not accept Mr Payne’s interpretation.

Submissions for Keeper

[23] Counsel adopted his written submissions. It was submitted that the North Lodge subjects had been validly registered in the land register, with their extant boundaries, on the basis of the MAMD being used as a link in title. While the MAMD might have been questionable as a deed which could be registered for a standalone title on its own, in conjunction with the sasine titles it could be used as a valid link in title to allow the registration of the relevant property. The disposition from Mr and Mrs Clair to Mr and Mrs Glendinning narrated the description of the North Lodge subjects under reference to the 1943 disposition and the MAMD, and depicted those subjects upon a plan. The combined effect was that the Keeper could map the subjects as required by section 4(2) of the 1979 Act. There was sufficient, in conjunction with the other relevant titles, to identify the land concerned.

[24] Although it was regrettable that the respondent had changed her mind on the matter of registration, the question was whether she was correct to allow the registration. That depended upon whether the MAMD was a personal agreement only and whether it could be relied upon as a valid link in title.

[25] It was submitted that the MAMD was not a personal agreement. Reference was made to Low & Bonar and Anr v Mercer Ltd and Lord Drummond-Young’s analysis at para 16 that:

“The significant characteristics of a deed are first that it should have some degree of formality and, secondly that it must demonstrate an intention to create a legal relation.”

The MAMD had these characteristics. There is no statutory form of disposition and the word “dispone” is no longer required: section 27 of Conveyancing (Scotland) Act 1874. Modern dispositions would have a narrative clause, a dispositive clause, a burdens clause, an entry clause, a warrandice clause and a testing clause, and the MAMD had all of these.

[26] In particular, the deed has operative dispositive clauses in Clause (TWO) and Clause (THREE) which make the intention to dispone clear. The deed was not intended to be personal.

[27] It was further submitted that the MAMD was a valid link in title. In essence it is an unregistered disposition. The Clairs as disponees were unregistered holders, or in traditional parlance uninfefted proprietors. The Clairs’ interest in the land was capable of being transferred and the MAMD provided a sufficient link between the Clairs and the Glendinnings.

[28] Reference was made to section 5 of the Conveyancing (Scotland) 1924 Act wherein the MAMD could be read as “conveyance”. Reference was made to the speech of Lord Rodger of Earlsferry in Burnett’s Trustee v Granger, in particular, at para [101]:-

“As the law stands today, the uninfeft proprietor is in much the same position as at the time of the decision of the whole court (in Earl of Fife v Duff) and of this house. He has the right to possess the subjects and to reap the fruits, including the rents; he has the power to sell the subjects and, by deducing title, to dispone them for either onerous or gratuitous causes”.

[29] Counsel also founded upon para [102]:-

“All that (the uninfeft proprietors) want, and can or need demand, is that the granter leave them alone and do nothing to prevent them completing their title. Seen from the other side, in practice the only obligation of the granter is to leave them alone and do nothing to prevent them completing their title”.

[30] It was pointed out that in essence the appellants were challenging the Clairs’ title, which they were not entitled to do. Following delivery of the MAMD the Clairs were in effect “owners” of the parcels of land transferred to them, and were entitled to sell and dispose of the land acquired under the MAMD. Thus the Keeper was entitled to register the Glendinning title and rely upon the MAMD as a midcouple.

[31] In the event that the Tribunal did not feel able to dismiss the appeal, there should be submissions for further procedure.

Submissions for appellants

[32] The appellants submitted that Mr Payne’s interpretation of the sasine titles was flawed, and could not be used retrospectively to justify the registration of the title in 2010. His position regarding the treatment of various boundaries in the 1943 disposition was incorrect.

[33] It was submitted that, largely for the same reasons given by the Keeper in 2006, that the MAMD could not be used as a valid excambion and disposition since it did not identify the land. Nor could it be used as a valid link in title. The document was of a personal nature. It had lapsed on the sale by the Clairs to the Glendinnings.

[34] The appellants were clearly aggrieved that the Keeper had told them that a land certificate for North Lodge would not be issued without some form of remedial action or court order, but that the Keeper had then proceeded to register the title without reference to themselves.

[35] The appellants were uncertain whether the boundary specified in the MAMD, if valid, had been accurately transposed into the Land Register. This was a matter on which Mr Holwill would require, as he put it, some further thought and would need further discussion.

Discussion by Tribunal

[36] It is apparent from the appellants’ oral and written submissions that no small part of their grievance relates to the way in which the Keeper’s decision to register the North Lodge title was taken. The Keeper had indicated to the first appellant that the land certificate for North Lodge would not be issued without some form of remedial action or court order in 2006. The Keeper then proceeded issue a land certificate on the basis of the MAMD in 2010. Since both appellants had been in correspondence with the Keeper in 2006 and 2007 on the same issue, it is not difficult to understand why they were aggrieved at not being informed of, or in any way being party to the 2010 decision. The Keeper has, of course, tendered her apologies for such state of affairs.

[37] It is by no means certain that in terms of jurisdiction the Tribunal had oversight under the 1979 Act so as to adjudicate upon whether some obligation existed on the part of the Keeper to inform or consult with a particular party in any particular registration process. The matter does not however appear relevant to the financial claim remaining in this case, and was not argued. As the Keeper points out, the question is whether she was correct to register the North Lodge subjects in the form she did in 2010.

[38] Turning to the question of the accuracy of the land register, it seems to us the central issue is whether the Keeper was correct to register the North Lodge title in favour of Mr and Mrs Glendinning using the MAMD as a link in title, thus completing a conveyance of such land as Mr and Mrs Clair held other than on a recorded deed. This subsumes three issues, namely (1) whether the MAMD was personal to the Clairs, (2) whether the description of the land in the MAMD was adequate, and (3) whether the MAMD constituted a valid link in title.

[39] Dealing with the first issue, we have no difficulty in holding that the MAMD was intended to operate in favour of singular successors of the Clairs. It is a formal deed and uses the word “dispone” in both operative clauses (TWO) and (THREE). Clause (THREE) dispones to and in favour of the Clairs “equally between them and to the survivor of them and to the executors and assignees whomsoever of the survivor heritably and irredeemably …”. The deed dispones the appellants’ “whole, right title and interest present and future therein and thereto …” Leaving aside rules applicable to special destinations it is thus apparent that the deed was intended to dispone to successors of the disponees including singular successors. It was not intended to lapse in the event of Mr and Mrs Clair selling the property. It is also apparent that the appellants were not free to revoke the agreement unilaterally. In short the MAMD was intended to act as a conveyance.

[40] Turning to the second issue concerning the description of the property, the agreement refers to the parties as being heritable proprietors of the first and second subjects respectively. Those subjects are given traditional conveyancing descriptions including descriptions by reference in terms of the relevant sasine recorded deeds. The recital indicates that the parties wish to determine the line of the boundary separating the first and second subjects. In terms of clause (THREE) the deed uses the words “… dispones … ALL and WHOLE any (our emphasis) area of ground presently in the ownership of the second party and falling within and forming a part and portion of the second subjects lying to (the north west and north east of) the red line … on the plan …”. So the deed is purporting to dispone “any” land falling within the grantors’ ownership lying on the grantees’ side of the agreed boundary line. There is, of course, a mirror provision providing for the opposite for any land in the ownership of the first party falling on the other side of the line.

[41] We recognise that this formulation does not readily identify the precise parcel of land being conveyed. The amount to be conveyed depends upon the amount of land falling on either side of the line in the ownership of respective parties. The extent of that ownership was in issue and could not be identified without the kind of detailed analysis which the deed was intended to circumvent. We do not say that the amount of land was unascertainable. But in the context of an underlying uncertainty as to the correct boundary, in which parties were likely to have differing views, it is not unexpected that the deed might contain, as it were, a degree of constructive ambiguity in using the word “any.”

[42] The settlement of boundary disputes is to be encouraged and where there is a deed intended to have such legal effect, we think the law should seek to give it effect unless there are sound reasons to the contrary. Here the deed contains conveyancing descriptions of the land owned by each party. The fact that the 1943 disposition boundary description may have been insufficient to plot on the ordnance survey map does not mean that the Clairs’ title was invalid. Clearly they owned the North Lodge subjects, but in a question with the owners of Craigbeg the south east and south west boundaries were unclear. No authority was cited to us for the proposition that a failure to specify an area measurement in a dispositive clause, or that a failure to specify parcel boundaries with precision, would make a disposition or excambion invalid. The problem of lack of clarity would arise at the point when the Keeper required to map the land in an application for first registration under s4(1) of the 1979 Act. But in this case the Keeper was dealing with a combined parcel of land, namely the 1943 disposition land and the MAMD boundary land. Once the Keeper had ascertained that the only potentially competing landowner in the area of the boundary had expressly conveyed all his land on the relevant side of the line to the applicants or applicants’ predecessors, there seems to us to be no insuperable difficulty with the application for registration. The new boundaries can be identified by the MAMD plan, and the other boundaries can be taken in conjunction with the sasine deed or deeds. We have no reason to think that the land was not sufficiently described for the purposes of s4.

[43] We now turn to the third point, namely, whether the MAMD could be used as a link in title so that land still in the heritable proprietorship of the appellants could be conveyed by Mr and Mrs Clair to the Glendinnings. On the basis of the authority cited to us, we accept the Keeper’s position that the general law has long recognised that an unrecorded conveyance may be used as a link in title. We adopt the reasoning of Lord Rodger at paragraphs [101 and [102] in Burnett’s Trustee v Granger, quoted above.

[44] In terms of section 4(1) of the 1979 Act, an application for registration shall be accepted by the Keeper if it is accompanied by such documents and other evidence as she may require. It can be seen from the correspondence in 2010 that the Keeper duly required the MAMD to be resubmitted as an unrecorded link in title. As we have indicated, we consider the MAMD to have been a valid conveyance in the context of a registration of the whole subjects. No argument was presented that the registration process or the underlying disposition was flawed in any particular way. So we conclude that the Keeper was correct, on reflection, to use the MAMD as an unrecorded link in title for the purposes of s4. The resulting entry in the land register was therefore accurate.

Conclusion

[45] In these circumstances we are satisfied that the claim is bound to fail. It is clear from the plan of the MAMD that the land which was registered on the basis of the MAMD includes the land which the appellants contend, in terms of their “Plan A,” was erroneously registered. Taking the appellants’ submissions as a whole, this is the area where they contend that Mr and Mrs Clair erected the two buildings, for which the appellants would seek the value.

[46] In reaching this conclusion it follows that it is not necessary for us to embark upon the factual and legal dispute between parties, namely the extent of the land in the boundary area pertaining to each property in terms of the respective sasine titles. It is clear from the appellants’ “Plan A” and from Mr Payne’s “Print B” that there is a substantial divergence of view relating to the south west boundary of North Lodge in particular. However, in the light of our finding above we are satisfied that this boundary was expressly and validly settled by the MAMD, thus sparing the necessity of establishing the previous true ownership position in terms of the underlying sasine titles.

[47] As we have indicated the appellants appeared to reserve their position as to whether the relevant boundaries specified in the MAMD plan were themselves accurately reproduced in the title sheet for North Lodge WLN 36946. From a study of the plans it is not impossible that there are certain very small differences in the respective boundary lines, and if so it would be necessary to reflect upon whether these differences are within recognised tolerances. However we have to recognise that this case has long been presented on the basis that the Keeper was wrong to rely upon the MAMD as superseding the sasine boundaries. Any investigation of possible discrepancy between the MAMD plan and the land register would, in our opinion, amount to a new case. No fallback position has been articulated that the Keeper was correct to rely upon the MAMD but in doing so did not transpose the boundaries correctly. Given the lengthy history of the proceedings, going back to 2013, we are not prepared to allow the claim to proceed on a different basis in respect of what would be, on any view, a very small area of land.

Decision

[48] In the above circumstances we dismiss the appeal. We reserve all questions of expenses.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 7 November 2018

Neil M Tainsh – Clerk to the Tribunal